Will the Court Help Trump Steal the 2026 Election?

Welcome to another episode of the Oath in the Office podcast. I'm John Fugelsang, and today we ask what happens when the formal checks on presidential power stay in place, but the administration won't stop pushing those boundaries of those checks, and what happens when the courts, Congress, the military, and the public are the institutions expected to respond. Apparently, the Postal Service has just found a brand new constitutional power, folks, deciding who gets the privilege of exercising what used to be a basic right voting by mail. For more, let's go to the star of the oath in the office, the author of the oath in the office and the presidents and the people, everybody's favorite constitutional law professor, Corey Bretschneider. Hello, sir.

Thanks so much, John. You know, when you and I started this podcast, we're about a year and a half in. The idea was a president takes an oath to preserve, protect and defend the Constitution. And this guy, this president, Donald Trump, looked like he was doing the opposite. And, you know, I've used the phrase to really emphasize the threat to democracy and self-coup, the idea of a president destroying the checks and balances. And unfortunately, rather than that being paranoid or overstated, it looks like that's exactly what's happening. And this post office story, which we've been covering again and again, it's just getting worse. And you don't have to, here's my thesis of this part of the show, but really it's a theme that covers the second Trump presidency. You don't have to actually have not only a violent coup or You don't have to suspend elections. You don't have to suspend Congress in order to destroy democracy. You just have to find these little ways of subtly changing the rules, changing the system. And that's what's going on here, that Donald Trump working with his new CEO of the post office, somebody who seems extremely complicit in Trump's demands to destroy democracy, They've come up with a way to do it, and it's coming up with convoluted rules that they want to implement to essentially deny ballots from even being delivered in the first place or from being counted.

Well, let's talk about that because you're right. It is sort of death of democracy by a thousand little cuts. And I want to begin by asking about the mail voting. The administration is saying, Corey– This isn't an election rule. This is just a mail rule that happens to affect elections. So it's very convenient. But the administration is asking the Supreme Court to allow all new postal service rules to make it harder for Americans to exercise their right to vote, restricting different aspects of mail voting. All of it to take place really fast before the midterms, because as you know, Corey, there was no fraud there. Barack Obama and Joe Biden were president. But when Donald Trump's the president, there's a lot of fraud, apparently, and Trump wants to warn us about it. So what is the fundamental constitutional question that justices are being asked to resolve here?

Well, the question that the way, you know, there are really two questions, depending on who's asking the questions. And that's the problem. If it was me asking the question, and this is certainly what you're going to hear from those challenging this new Rule doesn't quite, you know, it's sort of abstract way of talking about what agencies, how they implement policy. This rule would really do nothing less than destroy our election system. So it's a pretty serious rule that understates it. The way I would ask it is, does the president of the United States have the right to usurp the right to vote guaranteed in legislation and in the Constitution? The answer that I would give to that question is, is no, now let me ask it the way the Solicitor General and the President of the United States and the CEO of the Post Office want to ask it. Does the Post Office, under the direction of the President, have the right to administer the details of how mail is delivered or not? And, you know, in that way, it sounds very innocuous. And we have a series of events. We've been covering it again. Listeners know these details, but I want to update them. we had an initial moment where a lower court judge heard about this rule and saw the danger of it and stopped it from being implemented. And the Supreme Court came in and said, hey, you can't do that. It's too early, basically. And so they used this procedural maneuver of saying that the issue wasn't ripe, it wasn't time to hear it, in order to really allow it to move forward. Well, now they've implemented it. A lower court judge has stopped it and the administration is again now, as I predicted last week, now it's happening, going to the Supreme Court and saying, help us, help stop these lower court judges who are trying to so-called protect voting rights. No, that is what they're doing. And the administration is saying to the Supreme Court, we need an order that allows us to implement this quote unquote rule. What is the rule? Again, it's to really deny the delivery of ballots that are valid to deny them from being delivered in the first place and certainly from being delivered once they've been cast.

We have to keep on stressing there is no fraud that could ever affect the outcome of any elections that these policies are designed to fix. Just as with voter ID laws, you know that those are racist scams because there has never been an election in our country where the outcome was affected by voter impersonation. The only reason you have voter ID laws is to prevent voter impersonation. But the mainstream liberal media doesn't ask these questions too much. And now with this one, Corey, it's basically an emergency application saying, can we please change the rules right before the election and then litigate whether we were allowed to change them after the election? I mean, that's it, right? Like they're saying that the Postal Service is just settling mail handling requirements. They're not regulating elections. It's just doing what they do. It just happens to involve ballots, right?

Right.

Why does that distinction matter constitutionally?

Well, you know, I mean, I'll just use the argument, you know, the Solicitor General keeps making these arguments in the Supreme Court of why they should intervene on the behalf of the President. And he's saying things like, look, the President of the United States, if he fears that munitions or dynamite is being sent through the mail, he's got to act to protect our safety. And that's not a matter of law or a matter of the Constitution or a matter of rights. It's just the President's judgments. And the Solicitor General is saying essentially that's what's happening here too. Now here's the problem. What's the equivalent of the dynamite being sent through the mail? And what they're saying is it's these so-called fraudulent ballots. What fraud? Where is this? It goes back to the same theme of how Trump tried to steal the election. You said something else, John, that's really important. I want to always connect the dots between our different podcasts. We're honored to have Stacey Abrams, one of the best um out there when it comes to protecting democracy about the save act and she was campaigning as we were to stop this act being passed by congress which would have created you know as stacy abrams made it very clear on our show you know all localities really require some form of id but what the save act was doing was finding those ids that by and large democratic voters didn't have now that never passed so what did trump have to do he still wants to steal the election He can't cancel it. At least he's decided not to try that. He sees that that would cause too much chaos and resistance. So he's come up with this other scheme, this so-called rule, which would essentially deny ballots from being mailed. And, you know, it's something like a third of Americans cast their ballots through the mail. So we're not talking about a small amount here.

And of course the constitution gives Congress election authority and the administration's argument seems to be, well, somewhere in the postal service manual, there's an appendix and that means just as much, right? I mean, like, like Congress has not delegated the postal service authority to regulate elections in this way. That's what I keep coming back to.

Okay.

So, you know, when did Congress cede control over this? I mean, what is the constitution's actually say about who has authority over elections?

Right. I mean, there's no, you know, when it comes to, and that is, I should say, what repeatedly the lower courts have said, and district courts, and in this case, there was, you know, a decision that essentially said that, that elections, you know, are a combined authority of localities. Congress also has power over elections. And although they might have the power to say, hey, we want the post office to have sole decision over voter fraud or something like that, They didn't say anything of the sort. There's been no legislation. And in fact, the legislation that Trump tried to pass through Congress to destroy our democracy, the SAVE Act, didn't pass. So now what you're really asking is, like, isn't this obvious? Like, aren't we, you know, in a moment in which the Supreme Court, of course, should come in. OK, they said it wasn't right now that it is being implemented or they're trying to implement that. I should say, too, just to update people. This new rule, which would upend our elections, has been stopped by the lower courts. And Justice Jackson, who's got initial control over the procedure at the Supreme Court in this particular case, has not lifted that. So the post office is now being prohibited from using the rule. But why are we even talking about this? Why is the Supreme Court even going to consider it? Well, there is this idea that goes back to the Reagan White House and lawyers like now Justice Alito, then White House lawyer Alito, now Justice Roberts, then White House lawyer Roberts, who wanted to emphasize the complete control of the president over all the administrative agencies, including the post office. So what they're trying to say is this isn't a legal decision. We don't need power to be handed over by Congress. It's just an administrative decision. And I gave the example before of the president's control over, does he write on white paper or yellow paper that he orders for the White House? I'm not sure he's writing on any legal paths, but let's imagine a hypothetical where this president did write notes. If he chooses yellow over white, they're like, that's not a matter of law. That's just an administrative decision from within the executive branch. Well, that idea, which I've been stressing, is now going to the Supreme Court, and they have to decide whether or not This is a matter of law. In other words, did Congress delegate the power to decide elections? They clearly didn't. Or is this more of an administrative decision? So that's a real example that I gave about worrying about explosives being sent through the post office. And they're like, well, that would be an administrative decision. And this is one, too. And I would say it's got no chance. It's a crazy argument. Except look at who the justices are. They are the same people who are pushing for this idea of more administrative control over the agencies, over the post office. They're the designers, the lawyers who design this idea. So is it undermining law? Absolutely. Is it undermining Congress? Totally. But yet they're able to do it by just saying, no, this is just an administrative decision.

Well, I mean, this is the same Supreme Court where we know from the birthright citizenship case that three of them think the president should be allowed to overturn the Constitution with an executive order if that president's a Republican. So in many ways, it just seems like he's appealing to an umpire he hopes will be friendly. Because is there a constitutional principle here that goes beyond mail voting? I mean, it seems to be about whether, again, an executive agency can just discover brand new powers inside some old statute.

Yeah, I mean, you know, I just want to emphasize, you hear me talk about hope all the time, And on birthright citizenship, if you want to go, people can go back and listen to it. We had Cecilia Wang, who argued the case. But before, you and I discussed it extensively. And what I said, and I was vindicated by what they did, is, look, this is too embarrassing for them to take the side of the president. It says on birthright citizenship, right in the 14th Amendment, if you're born in the United States, then you are a citizen. And yes, it uses the phrase subject to the jurisdiction, but that's a very narrow idea.

It's not embarrassing for white supremacists, Professor. It's not embarrassing for white supremacists at all. It is just order.

But the Supreme Court there did what I predicted, right? They struck it down. Here, we're in a different world. There is an idea of this unitary executive, increasing executive presidential control specifically over the agencies on administrative decisions that they really have developed these justices, including justices who voted to strike down birthright citizenship, Justice Roberts in particular, he loves this idea. He loves this idea of the unitary executive control over executive agencies. What's the principle on the other side? We talked about laws passed by Congress. It's called separation of powers. It's called checks and balances. The idea that there's a limit when it comes to the executive branch and that limit, by the way, Madison tried and failed to spell this out in an amendment. I wish he did. that emphasize it's a balance of powers, that you have to make laws in order to implement them. And that's not how Roberts sees it. They really emphasize this vast and essentially inherent power of the executive. The executive power is vested in one person, the Constitution says, a president. And they're going to use this, well, malarkey, but I gave you the legal argument for this malarkey, in order to you know, do what? To undermine the law, to try to steal our election. That's why I'm so worried at this moment. Let me say one more sentence, John. Sometimes they do this through opinions, but this well might be done just through what's known as an emergency order, through a decision where we never really get to see why they did it. They have been reluctant under this shadow docket, these emergency orders to give us reasons. And, you know, I have no doubt Justice Jackson will give us her reasons for but it may well be a dissent. Well, yeah.

And I mean, that brings us to the crux of the thing, right? What changes when the Supreme Court is asked to intervene on an emergency basis rather than through the ordinary appeals process, right? This brings us back. You said the shadow docket. We got to tell people once again what that means. Why is emergency litigation, Corey, potentially different from the ordinary usual legal process of constitutional adjudications?

Yeah, we're combining two really disturbing trends that's understating it of the Supreme Court. One is the destruction of separation of powers and the tendency to ignore the law in favor of this idea that there are all these solely executive functions, the president controlling the agencies, controlling the post office. And here's what that's disturbingly combined with, a failure of the court to give its reasons. One of the main ideas of law is that the court is different than the other branches and that it has to tell us why it's doing what it's doing. What part of the Constitution is it or is it not respecting separation of powers? Why? And they do that through extensive opinions. That's the meaning of law. But increasingly, this court, this Roberts Court, the same Roberts Court that has really taken this unitary executive idea and run with it, And the way they're making decisions is through this so-called shadow docket or emergency docket. And what that means... is essentially they're not going to tell us their reasons. They're going to say, whoa, there's a lot of speed here. There's an emergency. Think of this timing. We are so rushed.

Yeah, no time to tell you.

We're in a rush. It's not an emergency. They create the emergency.

Oh, there's weapons in the mail.

Oh, that's nuts.

Hide the children. We don't have time for this. Exactly.

We don't have time for this. We don't have time to tell you why we're doing it. Just do it.

We have time to take apart the Voting Rights Act. We don't have time to explain to you why we're doing this. So, I mean- Yeah, the timing is what makes this thing really, really stink like Steve Bannon's hamper. I mean, there's a constitutional problem with election rules that didn't exist four years ago that has to be changed really, really close to an election. I mean, if the court allows these rules to take place, even temporarily, Professor, without resolving the whole constitutional question, what should we the people understand about what that decision establishes for the rest of time?

Well, you know, I'm always trying to find the hope. And sometimes through this discussion, I will find it, I promise. But, you know, it is the abdication of law. And, you know, the hope is going to come in us telling the truth about what's happening and recognizing that this Supreme Court and its current configuration is not inevitable. But, you know, I don't want to hide from it. What makes it law when the courts decide is they give reasons that are legal reasons. And when they refused to do that because of so-called emergencies, again, I mean, you know, we were joking, but it is a deeply serious point, an emergency created by this president and then used as an excuse by this court to refuse to tell us, we the people, what's going on, to even explain things to us. And one of the shocking things, too, is, you know, Jodi Kantor, who that really was an amazing moment that we got to have her on the podcast, but she explained in depth what's going on. She found memos about Justice is sort of acting in a kind of partisan, frustrated way with Joe Biden that launches the massive amount of the shadow docket. By the way, this is an idea that's been around for a while, this emergency docket. But it has just massively increased, and it coincides with the threat to democracy. So, no, it isn't law that they're doing. It's a kind of politics. It's a raw politics. They're not even pretending to hide it. They won't give us reasons.

We can't pretend that this administration cares about law. They care about order. But this is a convicted felon. This is grabbing by the pussy. This is Trump University. This guy stole from Americans, including vets, with a fraudulent online university. This guy had cops beaten for a lie. And pardon the terrorists who beat the cops. Don't ask us to pretend they care about law. And The Supreme Court justices know it as well. Some of them care about their reputation. Most of them just care about the order. And they're having this large federal effort now to identify this alleged non-citizen voting, which doesn't exist. Donald Trump's official point of view, Professor, still, is that Hillary Clinton only won the popular vote of the American people in 2016 because over 3 million undocumented immigrants voted illegally. They were somehow, Corey, 3 million were able to register, show up, vote, because I don't know if you know this, the main thing that undocumented immigrants want to do is get caught. So that's why they did it. I mean, it's that lie has festered for 10 years because no one cares. Oh, grandpa's robe is open again. That's just his old lie. So, I mean, they're trying to have comparisons of federal and state databases right now. And that's a big distinction. There's a big difference between someone illegally voting and someone's name appearing on multiple databases. This is the fraud. The fraud is this search for fraud. I mean, where are the legitimate government interests here, Corey? And where do the constitutional worries begin? Because there's three kinds of people, those who know what they're doing, those who don't care what they're doing, and those who remain blissfully ignorant to.

What they're doing.

Well, you know, I think one of the most important services that we're doing on this podcast, and I'm not unfortunately seeing it all the time in the mainstream media, if at all, is taking these individual stories that journalists are often good at reporting and connecting them. And these two stories, the story of the order to Homeland Security to find so-called fraud and this post office story are really one in the same. And so I'll say how they're connected. The story of telling Homeland Security to search for voter fraud comes from the fact that if Trump wants to justify this really radical new rule in the post office that's going to deny the distribution of massive numbers of ballots. I mean, we're talking about millions of people who vote by mail. Listen to how many. It's in the hundreds. of examples of even on the side of the right, the Heritage Foundation and similar groups, when you ask them, what are the examples of documented voter fraud? They can come up with a few hundred examples.

So how can a few hundred examples- Out of billions.

Exactly. This isn't just one election. This is what they've come up with, period. And so that's not enough. And the administration knows that, that if they're going to justify this new rule by the post office- They have to go out and they have to manufacture lots of examples of voter fraud. And that's what essentially the federal government in large– remember, Homeland Security is supposed to be doing things like tracking down sex traffickers. And now what are they doing? They're tracking– trying to track down fake voter fraud, manufacturing it essentially.

Well, we protect the sex traffickers now, Corey, if they're rich enough. I don't know if you've heard, but yeah.

Yes, I have heard about it. A little man named Epstein, a good friend of the president.

Can I ask you about this then? I mean– What kind– I get it, right? Like this whole effort to identify illegal voting and this is– it's there to undermine confidence in legitimate voters because, hey, if the government can generate large numbers of false positives or even a couple of hundred, that's all you need to cast doubt on any election you want, whether you have evidence or not. So here's the serious question, Professor. What kind of evidence would be necessary before the government– any government could legitimately conclude that someone had committed election fraud?

You know, it would have to just be many multiples of the 500 or several hundred or so examples. And, you know, it's not beyond them that they will try to manufacture those numbers and that they'll use all sorts of surreptitious lying techniques in order to do so. But the bottom line is it's manufactured. And no matter what number they give us, we know that the real number, by their own analysis, by the Heritage Foundation and similar groups who are allies of the president, is nothing like anywhere close to the amount of fraud that you would need. I mean, here's the other thing, though, just to kind of get into the nitty gritty. Even if you could show, and they're not going to be able to show this legitimately, that it is in the millions, what the post office does as a remedy, the remedy to the fraud, has to be logically connected. And nothing in this post office rule is logically connected. And we know that partly because a whistleblower from within the post office has told us this, and Senator Blumenthal has really been doing, talking about heroes and fighting back. Senator Blumenthal this week gets called a hero in defense of democracy because what he's done in publicizing this whistleblower report is show us that they're planning on doing things like showing that if a barcode doesn't quite scan right, that an entire cache of ballots, thousands of ballots under this rule are going to be invalidated. that they're requiring the states to engage in uploading onto a platform that's being developed, and evidently there are a lot of questions, to say the least, about what this will work, to upload legitimate voters to the post office so then they could see who's legitimate and who isn't. But the problem is that technology almost certainly won't work. What all these examples show from this whistleblower report is that if this rule is allowed to be implemented, it will create chaos. And that's the point. A lot of ballots just won't be mailed. They've concluded that this mail-in system and the chaos that will emerge from it will result in the denial of much, not that no Republican ballots will be affected, but there'll be many more Democratic ballots. And that's what they're trying to do, to sort of shave the points, to find the way of carving out The numbers so that Democratic votes are, you know, the election will happen, but that the Democratic votes essentially are never delivered.

And this brings us to Georgia, because we saw back in 2020, right, the presidential pressure on the state attorney general of Georgia. Find me the votes. Find me the votes. He did it on tape because he's stupid. It's very different strategically, Corey, for a federal administration to stop pressuring state officials and just start searching the voter rolls themselves. That's why this is happening, right? Because it didn't work with strong-arming these clowns in 2020.

Yeah, you know, is it Wile E. Coyote that's always trying to trap the roadrunner?

It's a solid movie, by the way. Best film in theaters right now.

Terrific movie. Terrific satire.

Different versions of it?

Yeah. That's what we're really seeing. You know, Trump is Wile E. Coyote. He's tried one thing, which is to demand the votes from the Secretary of State of Georgia. That didn't work. Well, go somewhere more friendly. Who's more friendly than the new CEO of his post office, who seems more than willing to to implement his own fraudulent denial of delivery of ballots. And let's combine that, too, with an order to his Tom Holman, his friendly Homeland Security agency, who he wants to order to go out and find examples of voter fraud. And, you know, it's the same story as the attempt to steal the election. And, you know, here we are again. But this is what's different, and this is why, you know, listeners can hear me worried about this, Because he's doing it from within the executive branch. And as much as law is supposed to constrain that, the Supreme Court may well fine for him. And here's another thing. This is not a new story where even if there are orders against them to do something, the administration is willing to do it anyway. And there already are documented instances, as there were with the deportation of of Obrego Garcia, they were told to turn those planes back, being sent to the Gulag in El Salvador. They didn't do it. And once again, it looks like they are refusing to listen to the courts when they say don't implement this rule. So right now, there is an order in place, Justice Ketanji Brown Jackson upheld it, that says do not do this new anti-voter fraud rule, supposed anti-voter fraud rule. Are they listening? I'm not so sure.

All right. We got to take a quick break. But obviously, this is what we're facing. There's a huge difference between investigating real demonstrable fraud and then starting with a convenient conclusion and shopping around for evidence, which is what we're witnessing right now. When we come back, the Supreme Court has opinions, Corey. It has arguments. It has transcripts. And then it has the really interesting stuff. locked up in the basement. Let's talk about why these people are being so secretive when we return on The Oath and The Office.

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Welcome back to The Oath in the Office. I'm John Fuglesingh, along with Professor Corey Bretschneider. And Corey, I think if we want to understand how a Supreme Court decision has been actually made, the answer is we'll have to ask a historian first. In about 50 years. There is a really weird story coming out about the court's justices keeping their working papers and internal records sealed for decades. These men and one of the women have a lot to be ashamed of. But why should ordinary citizens care about the archival practices of the Supreme Court? Why is this story more suspicious than it sounds?

Yeah, I mean, it sounds like, who cares? Newsflash, historian denied access to some papers in archive. This doesn't maybe grab listeners at first glance. As somebody who works in archival work and does a lot of historical research, it affects me, but it's not a normal story about an archive because it connects directly to exactly what we've been talking about. So to remind listeners from our first part of our conversation that The administration might well get an emergency order from the Supreme Court with no reasoning that allows them essentially, I mean, let's not hide it, to steal this election.

Thank you.

So how are we going to find out what their reasoning is? The only way to really find it out is through their papers. And what that means is their emails, their letters, their memos, their notes. about what's actually going on in this place that we call the Supreme Court, a once sacred institution. I'm not going to call it that anymore with what's going on there.

Thank you.

And the bottom line is they're aware of that. They don't want us to know. They know that journalists, and I keep mentioning Jodi Cantor, not just because she was a guest, but because she's the one getting all of these documents. And she's documented the story too of how they're trying to hide the documents. They are reading her work. They are seeing what she's getting access to, and they are petrified about it because it reveals them not to be a court of law, but one that is consistently undermining the democracy. So what are they doing? They're increasingly taking control over their own papers and basically refusing to allow us to see them.

That's so creepy. It's like they're treating we, the people's papers for our laws as if they're their family heirlooms, you know, do not open until everyone involved is dead. I mean, imagine if a president says my records as serving the people. Yeah, you can have them in 2076, right? I mean, But unlike presidents, Supreme Court justices are not subject to the same federal records laws. I did not know this. How did that arrangement develop?

Well, let me just say something about why we do have access to presidential records. And as you know, I've been spending a lot of time in the Nixon archives going through a lot of.

Oh, stop bragging about your partying on the weekends. Stop bragging. Go on.

I know you're jealous. Going through the secret details of well, the unknown crimes of Richard Nixon is part of what it will be about. Details that, as I release them, I think are going to be increasingly shocking, even for those who are already shocked by Nixon's presidency. But why can I get in them? Why do we have these records? It's because there was a long battle between Congress, actually, and lawyers from the Ford administration were pretty heroic in all of this, and Nixon himself. Nixon wanted to keep these papers for himself, He didn't want them released because he knew how much damaging, frightening stuff was in it. But Congress pushed back and passed legislation that demands that we have access to it. And so when Donald Trump tried to steal these records, which are the public's, and bring them to Mar-a-Lago and put them, for instance, in bathrooms in Mar-a-Lago in order to hide them from us, he was eventually prosecuted. Now we know that he never was successfully prosecuted because he became president and the Department of Justice has a policy against prosecuting sitting presidents. There was also the block of the immunity decision. But that was only, the crime came from the fact that he was disobeying this post-Nixon decision by Congress to make these records public. There is no such law when it comes to Supreme Court justices. They might themselves, by the way, try to block it. If you say, if Congress says, these are our records to the Supreme Court, they might say, hey, we're the court, we can stop We have the power of judicial review to strike down legislation on separation of powers questions, but we haven't even gotten to that point. There just is no legislation that demands it. So the justices have essentially decided it's up to them, and they don't want to release it. Now, that makes me pretty suspicious. I don't know about you. Why don't they? What is it? They don't want us to see. They don't want us to see the real reasoning that goes on behind this shadow document.

Yeah. When I first saw this, I was like, oh, so you're just making historians have like this constitutional scavenger hunt. But the more I looked at it, it's like this isn't about the historians of the future. This is about accountability in the present. And it includes justices that our listeners might like. The article talks about Justice Ginsburg's papers being sealed until every justice who served alongside her has died. and even Justice Souter's 50-year restriction. And these are the ones that, you know, the history books will probably look kindly on. I mean, are those unusually long periods of secrecy? Because I find that a little weird.

Yeah, and the fact that, you know, more liberal justices have been signing on to this is a sign of a real problem. I think that, you know, even liberal justices and judges, I'll add, on the lower courts are in a mindset that, you know, we're the court. We have this institutional... independence, this institutional neutrality. I might not agree with my colleagues, but I respect our rights, essentially, to reason as we want and our rights of privacy. And I think in a time when we've destroyed the public part of the court's operation, which are decisions, and replaced them increasingly in alarming numbers in the most important moments, by the way, this post office debacle is could destroy democracy. I mean, it could result in Trump, you know, cheating in the election. And yet, the court is going to decide it on this shadow docket, and we won't have access to it. And that's why it really is a crisis. And that's why, too, we really need to call out not just conservative justices who have hidden their papers, but liberal ones, too. And you mentioned Justice Ginsburg. Absolutely, that was a huge mistake that she made.

Let me make it even weirder then, because I'm not just going to call out liberal justices for being part of this, Mishigas, let's call out one of the most evil conservatives of all time for not being part of this, Scalia. Both Thurgood Marshall and Scalia show the opposite behavior, right? Thurgood Marshall's papers, his wishes were, you know, historians should have access to my records, and Scalia donated all of his papers to Harvard. So, I mean, doesn't that demonstrate the current system could allow for greater historical transparency without requiring Congress to rewrite the whole thing? I mean, if Scalia's got nothing to hide, for God's sakes.

You know, I think as much as we want to criticize Scalia, I think he was less a partisan in the exact way. I'm not saying there was never a partisan decision. Bush v. Gore was a purely partisan one. But he thought that his views were defensible. And I'm not sure that characterizes Justices Alito and and Roberts, that they really are making decisions that I think in their heart they know are not based on principle, but are based in partisanship. And that's why they don't want us to see this stuff. And I think that is not what characterizes Scully. I think he was a true believer in his, well, it wasn't just a philosophy he agreed with. It was one that he really created almost out of thin air, originalism and the unitary executive. Those are his ideas and also Judge Bork's ideas. And he wanted, I think, people to know about them. And what I would say about Thurgood Marshall, you know, before he was on the court, he wasn't somebody who had never defended the people's rights. He is the lawyer who argued Brown versus Board of Education. And so I think he understood the importance of democracy, the importance of transparency. And that really couldn't be further from today's justices.

I mean, Thurgood Marshall said, let the historians see the papers. And somehow democracy did survive. I should ask Could there be legitimate reasons for keeping judicial deliberations confidential even after the cases have been decided? Again, I hate to bring it up, but these people do work for us, Corey.

You know, I think authoritarians fear transparency. They fear information getting out. And so there is an instinct that goes back to Nixon, who really tried to claim everything was national security. Why can I essentially break the law? And he said, well, because America's in a civil war and national security requires me being above the law. He said that to David Frost. He cited Lincoln inappropriately as if that was Lincoln's belief. It absolutely was not. And what Nixon's idea was is it tied secrecy to emergency. It was the justification. He opposed Daniel Ellsberg's release of the Pentagon Papers. He thought it was a great evil. And so that's what authoritarians do. They try to clamp down on information. I think Justice Thurgood Marshall was on the side in many ways of democracy. And what does that require? It requires a kind of transparency. And the republic doesn't get destroyed by releasing and making public information. Quite the contrary. We destroy a republic by disallowing the people to even have a role in seeing what's going on in their name.

Exactly right. I mean, the public is being asked to trust this court. while also having to wait decades to examine this court's own history? I mean, that's a wacky definition of transparency, right, Professor? Like we're told, hey, trust the institutions. And I'm like, all right, fair enough. But don't the institutions have to make themselves available for inspections so we can trust them?

Absolutely, John. You and I on this one are in heated agreement. All righty.

Well, then let's move on because I want to talk about the House Democrats who this week– interesting doings. James Clyburn comes out and says he thinks it's time to expand the Supreme Court. And I'm like, well, if Clyburn said it, then we know it's mainstream and it's not fringe anymore. Waited years for this moment. And so this week, the House of Representatives rejected this desperate proposed constitutional amendment to permanently cap the Supreme Court at nine justices after the vote fell short of the required two thirds majority. This was 212 to 206. Corey, this tells me that this Republican Congress knows that the tide has turned and people do support having the same number of Supreme Court justices as we have appellate courts. Why would Congress need a constitutional amendment to accomplish this permanently?

The Constitution doesn't set a number. And in fact, we've had different numbers over time. And there was there, for instance, in many instances in American history, been fewer than nine justices.

For a whole year, Corey, for a whole year, the late Mitch McConnell decided we should only have eight.

Even recently, right? And earlier in history, in the 19th century, in the 18th century, we didn't have nine at various points. So, you know, there is no fixed number. And yet there is a realization here that I should say, too, there was a famous proposal to increase the number of justices precisely because there is no constitutional bar. That has to be done, by the way, not by a president, but through legislation. And then the president nominates and the Senate would confirm justices beyond nine justices. And the most famous example to increase the number was during the New Deal, when the Supreme Court, as it's acting now, was acting in a hyper-partisan way and striking down the New Deal. And what did President Roosevelt propose with the support of his allies in Congress, increasing the number through legislation? Now, ultimately, they backed down. This is often called the switch in time that saved nine, that what happened in that instance is the justices stopped striking down the New Deal and started to uphold it. And so Roosevelt was like, FDR was like, okay, you know, that's fine. We won't increase the number. But that threat is always looming that the number could be increased. And just to say very clearly what the reason for it would be, would be to dilute the existing justices' votes and to overwhelm them with those who might, you know, not just take the side of an authoritarian president. Now, Republicans see this coming. and they're trying to block it. And they tried to create, not legislation, but an amendment to the Constitution that would just keep this from ever happening. And thankfully, actually, they have not succeeded. Because even if we don't increase the numbers, it is an important threat. That FDR example shows it against a hyper-partisan court. There's nothing about your numbers that are fixed.

Well, yeah, and I want to point out that FDR did that to persuade the court, to pressure the court, because they were undoing New Deal reforms. And his plan even included having all justices over the age of 70 get to vote together for one collective Supreme Court seat vote. He had a whole plan, and it worked. The judges backed down, and the New Deal preserved. So what I've said all the time is Roosevelt never fought for this. He never tried to do this. He just proposed it as an intimidation technique, and it worked, and he backed down. He never actually fought for it. I mean, the Constitution says nothing, as you pointed out, about the number of the justices. The supporters are saying, well, a constitutional amendment, that would prevent either party from manipulating the size of the court. And opponents say, well, no, it would remove Congress's existing authority from doing that. I mean, that's the constitutional argument on each side, right?

Yeah, I mean, let's break it down with common sense. When you have the House Republicans saying, hey, we need a fairness amendment that would increase fairness on the Supreme Court by locking in the current number, you know, come on. They've realized how things have been tilted so far in their side that they want to lock those gains in. The unitary executive theory, the ban on prosecution of sitting and former presidents, at least within the outer perimeter of their official duties, all of those gains from this Supreme Court, this extreme Supreme Court, House Republicans love it. And so, you know, especially the Trumpers. So why would they want to risk that anything could be altered? They want to essentially put the court above the people, above, well, above the law. As much as they're flouting the law, there would be no way of bringing back our constitutional values that have been so assaulted by this court.

And just so I understand it fully, because I'm slow here.

Please.

It's almost ironic. You wouldn't need a constitutional amendment to add seats to the court, but you would need a constitutional amendment to cap the court at nine seats, correct?

Exactly, right. And that's what they're trying to do, to sort of, you know, to keep any future, well, they're imagining a world, which hopefully is coming soon, in which we have a Democratic Congress and a Democratic president. And we could well, I think we will, you know, this was seen as very radical. But we talked to Sheldon Whitehouse, the senator from Rhode Island, about the need for court reform. I'm not sure he's quite come out for this yet, but, you know, it's not far off. Biden considered it. He actually had a committee of many of my colleagues who looked into it. And unfortunately, from my point of view, decided against adding seats. I think they should have, certainly, at least to make up for the stolen seat of Merrick Garland. But times are different. You know, we've seen how dangerous this court is, especially in combined with an authoritarian president. And so they see the writing on the wall, the House Republicans, and that's why they're pushing, and Republicans in the Senate, I should add, and that's why they're pushing this amendment that would prohibit future congresses and future presidents from undoing the damage of this court.

Let's take a quick break. And when we come back, I want to ask you about how shocking this administration is moving to strip schools that aid minority students because white supremacists know how to stay on task. Back in just a moment, this is The Oath in the Office.

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Welcome back to The Oath in the Office. I'm John Fuglesang. Corey, the Treasury Department and the IRS released these new proposed rules that would deny or even revoke Section 501c3 tax-exempt status from private universities and that have race-conscious policies like targeted admissions or diversity scholarships. This is how much they love white supremacy, that they want to actually take tax-exempt status away from schools that care about racial discrimination. They're relying on Bob Jones University versus U.S., and I'm really glad they're leaning on such a predominantly fake Christian white supremacist. For those who don't know the case, what happened in Bob Jones?

It's one of my favorite cases. I think it's a case that had a great decision, and yet that sometimes happens, that you have a good decision, one that at the time made perfect sense, and then it gets abused by future executive branch officials and, well, by future presidents. So let me say what happened, and this is a case, John, that I was looking forward to talking to you about because it combines our interests in a really strong way. So Bob Jones University allows black Americans, black students into its school. It doesn't discriminate in admissions. But once you're there, let me tell you about some of its rules. This is during the Nixon administration. We're in history at this point. They say that if you go on a date with a person of a different race, you engage in interracial dating, you're thrown out of the school. They say if you advocate for the right of interracial marriage, and this is after the decision was guaranteeing the right to interracial marriage, Loving v. Virginia was decided. If you advocate for that right, you say, I like Loving v. Virginia, that was a good decision, you get kicked out of the school. You see where this is going. It is essentially a deeply segregationist university that justifies its segregation by appeal to what they claim is the literal word of the Bible. I could see you debating Bob Jones himself about this. They have various ways of defending it. So here's what happened. And remember, this was during the Nixon administration.

Oh, this was only 55 years ago. And it was only 50 years ago that the IRS revoked their tax-exempt status because they were so goddamn racist.

So continuing the story, exactly. So the IRS says, look, this is too much. By the way, we're not shutting them down. They're not going to prison. But they can do whatever they want. But we're not going to have them enjoy 501c3 status. which very specifically means that if I give a donation to Bob Jones University, I get a deduction on my taxes for that contribution. And so it's a way of indirectly subsidizing Bob Jones and the IRS and the Nixon administration.

Well, it's a way of subsidizing the bigotry as well. I want to point that out.

Right.

Because, I mean, this university banned interracial dating until– This century. Only the year 2000 did they drop it.

I have more to say about their sudden change of heart. I don't know how pure it was. Quite sudden, yeah. So that's how bad this university, how deeply white supremacist it was that even the Nixon administration was like, hey, that's too racist for us. Now, they had an argument in the Supreme Court, which is we have a right to religious freedom, free exercise, and we have a right to free speech, and you're violating both. And what the Supreme Court said, and this goes back to our license plate discussion, if listeners remember that, they said, look, government here is sending a message of disapproval. It's not... shutting you down or imprisoning you. And our message in defense of the Constitution of disapproval by denying this favorable status is we're not going to support white supremacy.

By the way, I should also point out, to be fair, in the year 2008, Bob Jones University formally apologized for their many decades of racist policies. And they even admitted, Corey, that their rules were shaped by the culture, not by the teachings of Jesus, because all white supremacists are revoltingly false Christians. Got to point that out. But now, today, this White House, led by a president who was also too racist for Nixon, let's not forget, they went after Trump and his dad, Imagine being too racist for Nixon, folks. Well, they're now connecting Bob Jones with the Supreme Court's affirmative action decision from 2023. Corey, what is the legal bridge here, good God, between these two cases?

Yeah, that's a good way to describe what's going on. But look, this is so disturbing because nothing in what I just said is wrong. And it makes sense that the Nixon administration did that. It's a good thing. I agree with that court's decision. I'll continue to say why. but the devious forces of the Trump administration have realized is, wow, how can we go after Harvard University? How can we go after the Ivies? How can we go after anyone who recognizes that some people in some circumstances have grown up with such adversity, with such racism, that we should at least do something to try to level the playing field? And their answer is, if you do anything that's race conscious, race aware, you're not colorblind in the way that this administration believes, quote unquote, colorblind, that Justice Thomas famously believes the Constitution requires. We're going to give you the Bob Jones treatment. So what they're really trying to do is to take away from, quote unquote, liberal schools, schools that are defiant and not backing down to them, including Harvard University. They're trying to say, hey, Under Bob Jones, we can strip you of your tax exempt status. And is the Supreme Court going to allow it? They just might.

This is amazing. Like to me, this is sort of the no, this is like, you know, in a way, it's it's a version of what they did with the word woke.

Right.

The word woke used to be a word used by anti-racists to describe structural racism. And in this last 10 years, the racists have weaponized that word against anti-racists. Like somehow they turned woke from being a bad word about racism to being, oh, the anti-racists are the bad ones. And I mean, this is a doctrine that was originally used to deny tax benefits to a university because they were racist and discriminatory. And now they want to apply this doctrine to programs that are designed to provide assistance to the groups that have been victims of that same discrimination by saying, having assistance to the historically disadvantaged groups is just a whole new form of discrimination, which is kind of how they gutted the Voting Rights Act this year, isn't it?

That's right. You know, there are themes here that we're carving throughout all these stories. And when we talked about the Voting Rights Act and the use of the colorblind idea to try to destroy essentially anti-racist policies that came, that were passed as a result of the civil rights movement, They're doing the same thing here too, that the Nixon administration's decision was part of a civil rights movement that was trying to respect people's free speech rights, their religious freedom rights. Nobody was going to jail in Bob Jones, but to combat white supremacy. And now the script has been flipped. And we've talked, for instance, on the show before about Christopher Ruffo and other conservative activists who have urged the administration to really weaponize the tools of civil rights. And that's what they're doing. They're taking this great case, Bob Jones, and manipulating it and twisting it as a way of not opposing white supremacy, but essentially of defending it.

Oh, yeah, of course. I mean, again, they're not defending the racist. They're going after the anti-racist, just like the word woke. I mean, could the government's rules, proposed rules, effectively transform Bob Jones from a case about government refusing to give a tax benefit to racist institutions into a much broader tool? for just policing educational institutions' diversity policies, if you're a bigot who doesn't like that?

I mean, we'll see.

I mean, that seems to be what they're doing.

And, you know, just to continue on with the theme that we were on, the Supreme Court decided the case in Harvard University for years. Let me just give a little background on this. Years and years before the Harvard, and there was also a case about UNC, they were combined. The idea was that if you look in the history of the 19th century, after the Civil War, three amendments were passed in order to stop subordination of black Americans. A 13th Amendment ending the subordination of formal slavery, a 14th Amendment guaranteeing equal protection, and a 15th Amendment guaranteeing a right to vote free from race discrimination. It didn't protect black women, but it protected black men. And that was the idea was anti-subordination and part of reconstruction of trying to recreate the nation under an idea of equality with the recognition that you don't move from a society that is a slave society to one that's equal without some laws that protect against and vindicate past racism. Now, what the Harvard and UNC case does is really get rid of that history. with that non-historian Clarence Thomas saying, oh, I see this word colorblind in an opinion and a dissent by Justice Harlan. He just pulls out literally one word, and that means no consciousness of race. And so the fact that there might be some race-conscious policies in these universities, the right is now using, and they're catering to Justice Thomas. And again, the court might well have the votes to uphold this, to strip these universities using Bob Jones, not universities of nonprofit status who engage in white supremacy, but those who oppose it.

Okay, so let me ask the million-dollar question then. I mean, is this a civil rights case, or is this a separation of powers case too?

Well, in the same way the word woke was taken from something that meant something decent as a way of chastising the left, The same is true of even the phrase civil rights, because is it a civil rights case? If you ask the Department of Education and Christopher Ruffo, that's exactly the language that they use. What they mean by civil rights and what it meant in 1964 in the Civil Rights Act couldn't be more different.

Well, white people are really tired of taking it from the man. Corey, we're glad that these guys are here to finally fight for the real victims. Professor, we covered a lot of ground today. I got to ask, what's giving you optimism and hope and I mean, it just seems like citizens need to really be careful when an administration says we're just enforcing existing Supreme Court decision, but then using that to justify whatever policies they want.

Well, here's some cause for optimism. Please. In telling the truth, you start to see these abuses for what's happening. And I think there are a lot of people who have thought for a long time, well, this is just going to be a glitch in our democracy. Things might not be great. I might not agree with the policies of this administration. But we'll get through it. And the more we see them manipulating the law with the Supreme Court, that's been our theme, not just the president here, but the court enabling this destruction of democracy through the post office, through the attempt to manufacture so-called voter fraud, through the weaponization of cases like Bob Jones to shut down rather than protect civil rights, through the shadow docket and the refusal to let us see how this court is operating. We are getting wise to the fact that this court is not operating as a court. It's acting as a partisan enabler of this president. We are seeing the threat to democracy for what it is. And that's where the hope comes from, because there is no chance to recover our democracy until we see what's happening. And that's exactly what's happening now. We're seeing it. And that is why I'm continually optimistic that, as is true throughout American history, that we the people are going to really push back. I think, by the way, and let me give you one other Cause for Hope. I've been talking a lot with people who were deeply involved in the Hungarian rescue of democracy from Viktor Orban, from dictatorship. And he tried to cheat. He gerrymandered. He manipulated votes. He did everything he could to win that election. And the vote was so overwhelming, recognizing his, as we called it last week, mafia leadership. Our own mafia presidency is an equivalent. That It didn't matter the gerrymandering, the cheating. The people fought back. And so I'll say it right now. My optimism comes from the fact that the votes for Democrats, especially in the House, are going to be so overwhelming. I'm less sure about the Senate. I think there's a chance there. But definitely in the House that even with the cheating, we're going to win this election.

I couldn't agree more. And that's a great note to end on. Professor, what is the best way for our listeners to follow you and keep up with your work throughout the week?

Well, you can listen to the two of us, to the Oath in the Office podcast, wherever you get your podcasts. These reviews have been great. Leave them wherever you listen. You can listen on Spotify, Apple, any of the platforms. YouTube is taking off. My God, John, last week we had an amazing uh, conversation with a former U S attorney from Michigan. And what that YouTube mafia presidency is the, is the title of it did is it blew up to more than 30,000 views within a few hours. And, uh, people really, I think, you know, that's another cause for optimism. People know something is wrong. And when they hear about this corruption, they want more of that information. So, um, Watch us on YouTube. Leave a review. If you haven't subscribed, by the way, please do and tell a friend.

Yeah, what's wrong with you people? What are you, moles? Subscribe already. I want to let everyone know I'm on SiriusXM's Progress channel every day at 12 noon Eastern, 9 a.m. on the Pacific Coast for three hours. Corey joins me live every Monday. And if you ever like the podcast so much you want to ask Corey some questions live, you can always call us live on the air every Monday at 866-997-GRIT. My book is called Separation of Church and Hate. The next one's on sale and coming out around Easter time. And, oh, the Stephanie Miller Sexy Liberal Comedy Tour, which I've done off and on for the past few years, is having one date in all of 2026, and I've got to plug it. We'll be playing the Saban Theater in Los Angeles right before the midterms, Saturday, October 24th. If you're on the West Coast, get there. If you're not on the West Coast, get on a plane and get there. Stephanie Miller for Angela House Sparks and our special guest, Glenn Kirshner. and Senator Adam Schiff and Jedi Master Mark Hamill all on one stage. Come see us live. And I want to thank Wendy and Bea Wolf and everyone who puts the show together every week. And I want to thank you, Professor, for giving me such a smart and yet inspiring podcast at the same time. Thanks for the free constitutional law lesson you give us all.

Thanks so much, John. And, you know, I'll add one more thing, which is a lot of the optimism and hope comes from talking to you every week. So thanks for that. Brilliant.

Thank you all. We'll see you next time on The Oath in the Office.